SAN FRANCISCO (Legal Newsline) - The judge overseeing federal multidistrict litigation over Roundup dismissed two lawsuits for lack of evidence, suggesting in his order that a Houston law firm may have “committed malpractice” by failing to hire an expert to testify the herbicide caused their clients’ cancer.
In a brief Dec. 29 order, U.S. District Judge Vince Chhabria also ordered attorneys at Houssiere, Durant & Houssiere to “read this ruling out loud to their clients, and send them a written copy.”
Judge Chhabria essentially enabled Roundup litigation with a 2019 order allowing plaintiff experts to testify it causes non-Hodgkin’s lymphoma, a common cancer, even though he acknowledged the evidence “barely inched over the line.” Roundup maker Monsanto subsequently lost several multimillion-dollar jury verdicts, and its corporate parent Bayer AG is struggling to resolve tens of thousands of cases with an $11 billion settlement while still maintaining the product is safe.
The U.S. Environmental Protection Agency and most national regulators around the world reject the idea Roundup and its active ingredient glyphosate cause cancer. Epidemiological studies involving tens of thousands of agricultural workers exposed to high amounts of the chemical show no increased rates of NHL. But plaintiff lawyers have recruited some 100,000 U.S. consumers as clients who claim they got cancer from far lower doses.
In his order, Judge Chhabria said plaintiffs still “must present at least one admissible expert opinion to support their contention that Roundup was the specific cause of their NHL.” The plaintiffs in the two cases he dismissed didn’t identify any experts before a deadline that expired several months ago, the judge wrote.
“Perhaps this is because no expert was willing to opine that Roundup” caused their cancer, the judge said. “Or perhaps it is because lawyers from the Houssiere firm committed malpractice by failing to secure a specific causation expert.”
Either way, the judge concluded, he must grant Monsanto’s motions to dismiss. Asked for comment, Houssiere, Durant directed the query to their website.
To win a toxic-tort lawsuit, plaintiffs must prove general causation – that a substance is capable of causing injury – and specific causation, or that it caused their injury. Plaintiff lawyers rely upon a handful of experts who are willing to testify glyphosate causes NHL, including Chris Portier, who served on the World Health Organization’s International Agency for Research on Cancer panel that found it was a probable carcinogen. Weeks after that finding, Portier hired on as a paid expert for plaintiff experts.
To show specific causation, plaintiff lawyers hire doctors who offer opinions based upon “differential etiology,” a legal process of elimination in which the expert purports to rule out various causes of a disease and rule in the one being sued over. Defense experts say this is illogical in the case of NHL, where the scientific consensus is more than 70% of the cases have no identifiable cause. Age is closely associated with the disease.
Judge Chhabria hasn’t been entirely favorable toward plaintiff lawyers in this case. He sanctioned attorney Aimee Wagstaff for violating pretrial orders in closing arguments in one trial, and sanctioned attorney Jennifer Moore in May for joining in Wagstaff’s misconduct.